EXHIBIT 10.32
CONFIDENTIAL SETTLEMENT AGREEMENT
This CONFIDENTIAL SETTLEMENT AGREEMENT (this "Settlement"), dated as
of June 25, 2003, by and among JDS UNIPHASE CORPORATION, a Delaware corporation
("JDSU" or "Claimant"), and IPG PHOTONICS CORPORATION, a Delaware corporation
("IPG" or "Respondent");
WITNESSETH:
A. IPG and JDSU's predecessor in interest, SDL Inc., a Delaware
corporation ("SDL"), entered into a purchase and sale agreement entitled IPG
Photonics Corporation Purchase and Sale Agreement No. 1-99, dated May 11, 1999,
which was subsequently amended by the parties on or about May 18, 2000 and
amended a second time on or about November 15, 2000 (collectively, the
"Agreement"); and
B. a dispute arose between IPG and SDL's successor in interest, JDSU,
concerning the parties' performance, rights, and obligations under the
Agreement; and
C. JDSU has commenced an arbitration proceeding against IPG before the
American Arbitration Association, entitled JDS Uniphase Corporation against IPG
Photonics Corporation, AAA Number 74 181 01636 02, now pending before the AAA
San Xxxx Regional Office (the "Arbitration"), alleging that IPG has breached the
Agreement and now owes JDSU in excess of $10 million;
D. JDSU also commenced a proceeding against IPG in Massachusetts state
court, entitled JDSU Uniphase Corp. v. IPG Photonics Corp., No. 02-1780, now
pending before the Superior Court of the Commonwealth of Massachusetts
requesting, among other things, equitable relief in the form of an attachment of
IPG's assets in Massachusetts (the "State Court Action").
E. IPG has asserted counterclaims against JDSU and SDL in the
Arbitration and the State Court Action sounding in breach of contract, unfair
competition and violation of federal and state laws governing anti-trust and
unfair competition;
F. Both parties have denied the others' operative allegations
contained in the Arbitration claim filed by JDSU and the counterclaims filed by
IPG; and
G. IPG and JDSU each believes that it will be best served by ending
the disputes reflected in the Arbitration and the State Court Action and that
the continued prosecution of the Arbitration and the State Court Action will
entail the expenditure of substantial legal fees and management time for both
IPG and JDSU over the course of several years, resources that each of them
believes would be better spent in pursuit of such business interest; and
H. Subject to the terms of this Settlement and the other instruments
and documents to be entered into by it pursuant hereto, JDSU is therefore
willing to dismiss the claims it has asserted against IPG in the Arbitration and
the State Court Action, and IPG is willing to dismiss the counterclaims that it
has asserted against JDSU in the Arbitration and the State Court Action; and
I. Accordingly, the parties hereto desire to settle their disputes
reflected in the Arbitration and the State Court Action on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants set forth herein, the parties hereto hereby agree as follows:
1. Representations and Warranties.
Both IPG and JDSU hereby represent and warrant to the other that:
A. It has the corporate power and authority to enter into this Settlement
and the other instruments and documents to be entered into by it
pursuant hereto and to observe and perform its obligations hereunder
and thereunder;
B. The execution and delivery of this Settlement and the other
instruments and documents to be executed and delivered by it pursuant
hereto, and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized by all necessary corporate
action;
C. This Settlement and each other instrument and document to be executed
and delivered by it pursuant hereto has been or, when executed and
delivered, will have been, duly executed and delivered, and this
Settlement and each such other instrument and document constitutes or,
when executed and delivered by it, will constitute, a valid and
binding agreement, enforceable against it in accordance with its terms
(except insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, or by principles governing the
availability of equitable remedies);
D. None of the execution, delivery or performance of this Settlement and
the other instruments and documents to be executed and delivered by it
pursuant hereto, nor the consummation of the transactions contemplated
hereby and thereby, nor compliance by it with the terms hereof and
thereof, will: (i) conflict with or result in a breach of any of the
provisions of its charter, by-laws, or equivalent governing documents;
(ii) require any filing by it with, or any permit, authorization or
consent from, any court, administrative agency, or other governmental
or regulatory authority, foreign or domestic, or from any third party,
except any filings or reports required to be made under and pursuant
to applicable securities laws or the rules and regulations of any
applicable stock exchange or market quotation system; (iii) result in
a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default under, any note, bond, mortgage,
indenture, lease, license, franchise, permit or other instrument or
agreement to which it is a party or by which it is bound or any of its
assets is affected; or (iv) violate any order, writ, injunction,
decree, statute or ordinance applicable to it; and,
E. It has not relied on any representation or warranty, written or oral,
that is not set forth herein or in any of the instruments or documents
executed pursuant hereto in entering into this Settlement and each
other instrument and document to be executed and delivered by it
pursuant hereto; it has entered into this Settlement and such other
instruments and documents voluntarily and without duress, threat or
undue influence;
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it has been represented in negotiations relating to and in the
preparation of this Settlement by independent counsel of its own
choosing, it has reviewed this Settlement and such other instruments
and documents and each such document has been explained to it by its
counsel, it is fully aware of its terms and provisions and of its
legal effect; and it has conducted whatever investigation it has
deemed necessary or appropriate prior to entering into this Settlement
or any such other document.
F. Notwithstanding anything to the contrary in clauses B, C and D of this
Section 1, IPG shall make the representations and warranties in such
clauses B, C and D with respect to the Equity Documents (as
hereinafter defined) at the time of and conditioned on the Closing (as
hereinafter defined).
2. Stay and Dismissal of the Arbitration Claims with Prejudice.
A. Concurrently with the execution of this Settlement, IPG and JDSU shall
cause their respective attorneys to execute a Stipulation and Order to
Stay the Arbitration ("Stipulation and Order To Stay Arbitration"),
for a thirty (30) day period.
B. Upon the Closing, IPG and JDSU shall cause their respective attorneys
to execute a Stipulation and Order of Dismissal for the dismissal with
prejudice of the Arbitration ("Stipulation and Order of
Dismissal-Arbitration"), subject only, as stated therein, to the terms
and conditions of this Settlement.
C. Upon the Closing, IPG and JDSU shall cause their respective attorneys
to execute a Stipulation and Order of Dismissal to dismiss the action
entitled JDS Uniphase Corp. v. IPG Photonics Corp., No. 02-1780,
currently pending in the Superior Court of the Commonwealth of
Massachusetts ("Stipulation and Order of Dismissal-State Court
Action"), and vacating the attachment of assets to which the parties
have previously stipulated in that action.
D. Each of the parties hereto shall, promptly after the execution and
delivery of this Settlement, return any and all materials in its
possession to the party that provided such materials, if and to the
extent required by any confidentiality agreements executed by such
parties or protective orders governing the return of such materials.
3. Structured Cash Payment to JDSU.
A. Promissory Note.
Concurrently with the execution of this Settlement, IPG shall execute
a promissory note (the "Note") in favor of JDSU, in the form of
Exhibit A attached hereto in the principal amount of $6,079,472.60
(Six million, seventy nine thousand, four hundred and seventy two
dollars, and sixty cents), which shall be payable by IPG on the
following schedule:
i. $666,000 shall be paid to JDSU during calendar year 2003 in two
equal installments, pursuant to the terms of the Note;
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ii. $2,000,000.00 shall be paid during calendar year 2004 in equal
quarterly installments pursuant to the terms of the Note; and
iii. the balance of the amount to be paid during calendar year 2005 in
equal quarterly installments pursuant to the terms of the Note.
Interest shall accrue on the outstanding balance of the Note at a rate
of 4% (four) per annum commencing on the date of the Closing. Accrued
and unpaid interest under the Note shall be payable at the same times
as payments of principal.
At the Closing, IPG shall pay to JDSU $302,006.30 (which amount
represents a payment to JDSU of $334,000 less $31,993.70 for an
outstanding account payable of JDSU owing to IPG).
B. Attachment: The Note shall be secured by a first priority security
interest in certain IPG's assets set forth in the Security Agreement
(the "Security Agreement") in the form of Exhibit B attached hereto,
and in certain land owned by IPG set forth in the Mortgage (the
"Mortgage") in the form of Exhibit C attached hereto. JDSU and IPG
shall execute the Security Agreement and IPG shall execute the
Mortgage concurrently with the execution of this Settlement.
C. Release of Liens: At or promptly following the Closing, JDSU shall
release its liens and attachment on the assets of IPG under the Writ
of Attachment, dated February 28, 2003 (Superior Court Department of
the Trial Court Civil Action 02-1780C); it being agreed that the
assets subject to such Writ of Attachment shall become the assets
which shall the Note pursuant to the Security Agreement and the
Mortgage.
D. Acceleration. The amounts set forth in Section 3(A) shall be
accelerated and shall become immediately due and payable upon the
occurrence of any of the following events:
i. IPG shall have defaulted in the performance of its obligations
under the Note and shall have failed to cure such default within
thirty (30) days of written notice thereof given by JDSU in
accordance with terms of the Note; and
ii. A Change of Control of IPG, as defined in the Note.
E. Other Prepayments.
i. In the event that IPG engages in an equity financing prior to
repayment and satisfaction of the Note, it shall provide to JDSU
in payment of the Note 10% of any net proceeds raised through
such financing; or
ii. In the event that IPG's commercial bank (BankNorth) releases to
IPG any cash collateral currently held by it, IPG shall provide
those funds to JDSU in payment of the Note as follows:
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a. If the release occurs during 2003 or 2004, then IPG shall
pay JDSU 50% of such released cash in partial payment of the
Note; and
b. If the release occurs during 2005, IPG shall pay to JDSU 75%
of such released cash in partial payment of the Note, until
such Note is paid in full.
All prepayments shall be applied in the reverse order of principal
payments under the Note.
F. Disposition of assets. IPG shall be permitted to sell, transfer or
otherwise dispose of the assets securing the Note from time to time,
provided that (a) the assets are sold for fair value, and (b) that the
net consideration received by IPG in connection with the sale of the
assets are used within five (5) business days of the receipt thereof
to prepay the Note. All payments under this Section F shall be applied
in the reverse order of principal payments under the Note.
4. Commercial Relationship.
A. Concurrently with the execution of this Settlement, IPG and JDSU shall
execute (a) a Master Supply Agreement, in the form of Exhibit D
attached hereto, pursuant to which IPG agrees that it will supply to
JDSU, pulsed Ytterbium fiber laser modules (current and new commercial
versions) that it sells on the merchant market, excluding those fiber
lasers as to which IPG is subject to exclusivity obligations and (b) a
Master Supply Agreement under which JDSU agrees to supply to IPG, and
IPG agrees to purchase from JDSU on the terms and conditions set forth
in Exhibit E, commercially available Laser Diodes and packaged Laser
Diodes that it sells on the merchant market.
5. Investment By JDSU.
Promptly following the execution of this Settlement, IPG and JDSU will negotiate
in good faith to document and effectuate the general terms set forth below
governing the terms of a new series of convertible preferred stock of IPG (the
"Series D Preferred") and a convertible note (the "Convertible Note") to be to
be issued to JDSU at the Closing. The parties hereto agree that IPG shall
provide to JDSU drafts of the principal documents incorporating the terms of the
Series D Preferred and Convertible Note (collectively, the "Equity Documents")
to JDSU not later than three business days following the execution of this
Settlement. It is the goal of the parties hereto to execute and deliver the
Equity Documents (including obtaining all necessary approvals and consents,
which IPG agrees to request in good faith) not later than three weeks following
the execution of this Settlement. The terms of the Equity Documents shall
reflect the following:
A. IPG would provide a new series of convertible preferred stock, the
Series D Preferred, having a $5,100,000 liquidation preference. IPG
would issue the Series D Preferred representing 5% of IPG outstanding
shares (fully diluted, including accounting for weighted average
ratchet and warrant positions) to JDSU.
i. The liquidation preference and price per share would be $1.90 per
share (equal to $5,100,000);
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ii. Series D Preferred rights and preferences would be substantially
similar to Series A Preferred and Series B Preferred stock of IPG
currently outstanding (except for ratchet and warrants,
participating rights after payment of full liquidation
preference, and process control rights), including same
liquidation preference and weighted average anti-dilution rights.
The Series D Preferred would have no superior rights or
preferences;
iii. IPG would provide to JDSU copies of all financial materials
submitted to its Board of Directors (e.g., balance sheets, income
statements, cash flows), except for strategic marketing or
product pricing materials. JDSU would agree to implement a
"Chinese wall" within its organization to protect disclosure by
the holder of the IPG materials to competing JDSU operating
divisions and personnel; and
iv. This issuance would be subject to reasonable due diligence by
JDSU and subject to reasonable confidentiality limitations on the
material supplied to JDSU.
B. IPG would issue to JDSU the Convertible Note in the principal amount
of $5,100,000, due three years after issuance and convertible, in
whole or in part, at IPG's option, into Series D Preferred.
i. The conversion price for the Convertible Note into Series D
Preferred would be $1.90 per share;
ii. The Series D Preferred shares acquired upon conversion of the
Convertible Note would have a conversion price into common the
same as the then conversion price for outstanding Series D
Preferred shares (i.e., lower of $1.90/share or weighted average
price (accounting for dilutive issuances, splits, reverse splits,
etc.) of the outstanding Series D Preferred); and
iii. The full amount of the Convertible Note would be immediately
payable (or convertible) in the event of a Change in Control of
IPG.
6. Intellectual Property.
A. JDSU represents to its Knowledge (defined below) that no current
product of JDSU violates any currently issued U.S. Patents owned by
IPG for the design, manufacture or conception of fiber lasers or the
components thereof. For purposes of this Settlement, "Knowledge" means
the opinion of JDSU's Vice President of Intellectual Property, formed
after due inquiry, including but not limited to the General Manager of
JDSU's Commercial Lasers division.
B. IPG disclaims any and all rights, interests or ownership in and to any
of the intellectual property used to develop or otherwise contained in
the laser diodes and fiber laser products at issue in the Arbitration.
IPG further agrees that JDSU's products have not violated IPG's fiber
laser related patents; provided that this covenant does not affect any
of IPG's rights or assets in the future, except as expressly stated in
this Section 6 or in Sections 7B or 10B.
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C. IPG covenants that it will not commence an action claiming that JDSU's
or its Affiliates' products infringe any patents owned by IPG or its
Affiliates, or which IPG or its Affiliates have the right to assert,
for any period prior to the Closing. For purposes of this Settlement,
"Affiliate" means an entity which owns or controls, directly or
indirectly, more than 50% of the voting interests in, or more or than
50% of the voting interests of which is owned or controlled, directly
or indirectly, by a party.
D. IPG covenants that, for a period of three years from the date of the
Closing, it will not bring any claims against JDSU or its Affiliates
under any issued patents that exist as of the date of the Closing, or
currently pending patent applications which IPG or its Affiliates own
or have the right to assert. The covenant in the preceding sentence
shall not prevent IPG from asserting patent infringement or
intellectual property-related counterclaims or defenses against JDSU
in a patent infringement lawsuit filed by JDSU against IPG, or for
asserting misappropriation claims against JDSU directly related to the
hiring or retention by JDSU of IPG's employees or consultants and the
use by JDSU of information developed by such former IPG employee or
consultant for or on behalf of IPG or others associated with IPG. In
the event of any finding of liability against JDSU for patent
infringement or violation of intellectual property rights of IPG, the
parties agree to the following additional stipulations:
i. With respect to any existing JDSU fiber laser products, IPG
foregoes recovery of any damages owed by JDSU to IPG for three
years from the date of the Closing; and
ii. With respect to other JDSU products, IPG would be entitled to
recover damages commencing not earlier than the date of the
Closing.
E. Nothing in this Settlement shall be interpreted or construed as a
grant, sale, transfer, assignment or license, directly or indirectly,
by IPG or its Affiliates to JDSU of any intellectual property rights
or properties, including without limitation any patent, copyright,
trade secrets, trademarks or tradenames, of IPG or its Affiliates,
whatsoever.
7. Worldwide Mutual Releases.
A. JDSU Release:
JDSU, on behalf of itself and its direct and indirect subsidiaries,
and other Affiliates, and their respective directors, officers,
employees, agents and representatives, including, without limitation,
its and their attorneys, and their respective predecessors (including
SDL), successors, assigns, heirs and legal representatives, hereby
releases, acquits, and forever absolutely discharges IPG, its direct
and indirect subsidiaries, and its other Affiliates, and its and their
respective directors, officers, employees, agents and representatives,
including, without limitation, its and their attorneys, and their
respective predecessors, successors, assigns, heirs and legal
representatives, of and from any and all actions, causes of action,
claims, demands, damages, theories, affirmative defenses, judgments,
liens, indebtedness, losses, expenses (including, without limitation,
attorneys' fees and disbursements) and liabilities of every kind and
character, whether known or unknown, suspected or unsuspected, certain
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or speculative, existing or prospective, liquidated or unliquidated,
whether under the laws of the United States or any state thereof or
any other country, which exist as of the date of this Settlement or
may have come into existence at any time prior to the date of this
Settlement.
B. IPG Release.
IPG, on behalf of itself and its direct and indirect subsidiaries, and
other Affiliates, and their respective directors, officers, employees,
agents and representatives, including, without limitation, its and
their attorneys, and their respective predecessors, successors,
assigns, heirs and legal representatives, hereby releases, acquits,
and forever absolutely discharges JDSU, its direct and indirect
subsidiaries, and other Affiliates, and their respective directors,
officers, employees, agents and representatives, including, without
limitation, its and their attorneys, and their respective predecessors
(including SDL), successors, assigns, heirs and legal representatives,
of and from any and all actions, causes of action, claims, demands,
damages, theories, affirmative defenses, judgments, liens,
indebtedness, losses, expenses (including, without limitation,
attorneys' fees and disbursements) and liabilities of every kind and
character, whether known or unknown, suspected or unsuspected, certain
or speculative, existing or prospective, liquidated or unliquidated,
whether under the laws of the United States or any state thereof or
any other country, which exist as of the date of this Settlement or
may have come into existence at any time prior to the date of this
Settlement.
C. No Release of Indebtedness.
Nothing in this Settlement shall be deemed to constitute a release of
indebtedness by JDSU to IPG which obligations existing as of the date
hereof are contained solely in the Note and the related Security
Agreement and Mortgage, and in the Convertible Note, it being agreed
that this Settlement settles and releases all claims and allegations
by the parties against each other regarding obligations and rights
that were in dispute by each of JDSU and IPG in the Arbitration and
the State Court Action.
D. Possession of Claims.
The parties hereto represent and warrant that they are the owners of
the Claims being released pursuant to this Settlement. The parties
hereto further represent and warrant that they have not previously
assigned, transferred, hypothecated, granted a security interest in or
lien upon, or purported to assign, transfer, hypothecate or grant a
security interest in or lien upon, any Claim or portion thereof which
is released hereby to another person or entity which is not a
signatory to this Settlement, and agree to indemnify fully the other
parties hereto for any judgments, attorneys' fees or costs incurred
which result from the assertion by any person of any interest in the
released Claim due to any purported agreement or dispute as to
ownership of the Claims released pursuant to this Settlement.
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8. California Civil Code Section 1542.
The parties hereto acknowledge familiarity with Section 1542 of the
Civil Code of the State of California, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
The parties hereto waive and relinquish any right and benefit which they
have or may have under Section 1542 and any Massachusetts statutory or
common law equivalent or any other similar applicable statutes to the full
extent that they may lawfully waive all such rights and benefits pertaining
to the subject matter of this Settlement as described above.
9. Closing.
The consummation of the transactions and releases contemplated by this
Settlement shall occur at a closing (the "Closing"). It shall be a condition to
Closing that all of the Equity Documents shall be executed and delivered by the
parties hereto in form and substance reasonably satisfactory to both parties
hereto, and that all other documents or filings necessary or reasonably
requested by a party hereto to effectuate the Equity Document and the other
agreements set forth in this Settlement shall be executed and delivered and
shall have been made simultaneously. Subject to satisfaction of the conditions
in this Settlement, each party hereto shall deliver to the other party executed
originals of the Stipulation and Order of Dismissal-Arbitration; the Stipulation
and Order of Dismissal-State Court Action; the Note; the Security Agreement; the
Mortgage; the Master Supply Agreements; and the Equity Documents, including the
Convertible Note and a stock certificate representing the issued shares of
Series D Preferred. IPG shall also pay to JDSU at the Closing $302,006.30
referred to in Section 3(A) above. The covenants, representations and warranties
contained in Sections 6 (Intellectual Property), 7 (Worldwide Mutual Releases),
10 (Future Disputes), and 11 (Termination of Agreement) hereof shall become
effective only upon the consummation of the transactions contemplated by this
Settlement at the Closing.
10. Future Disputes.
A. Attempts To Resolve.
If, after the date of this Settlement, either IPG or JDSU (the
"Alleging Party") believes it has a claim (a "New Dispute") against
the other, the Alleging Party shall give notice to the other party of
the New Dispute, setting forth, in reasonable detail, the nature and
basis for the New Dispute. The parties, for a period of thirty (30)
days (or such other longer period as determined by mutual consent of
the Disputing Parties), shall use their best efforts to resolve such
New Dispute between themselves and neither party shall commence any
such action during such thirty (30) day period.
B. IPG's Assertion of Defenses.
In the event JDSU brings an action against IPG for breach of any term
or obligation of this Settlement and the other instruments and
documents to be entered into by it pursuant hereto, IPG agrees that it
will not assert as a counterclaim or defense in that action, any
claims contending that JDSU has engaged in unfair competition or other
claims brought under the anti-trust laws of the United States, any of
its
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states, or a foreign country. To the extent that IPG wishes to pursue
any of the foregoing claims against JDSU, IPG shall be permitted to
assert those claims in a separate and unrelated action but only to the
extent that the basis for the claim is not JDSU's assertion of a
breach of any term or obligation of this Settlement and the other
instruments and documents to be entered into by it pursuant hereto.
11. Termination of Agreement.
Upon execution of this Settlement, the Agreement between IPG and JDSU shall
terminate and neither party shall have any further rights or obligations
thereunder.
12. Confidentiality.
The terms of this Settlement are strictly confidential and none of the
parties hereto shall, nor shall it or he permit any of its or his subsidiaries
or affiliates, counsel, auditors, financial advisors or other representatives or
agents to, disclose the terms of this Settlement to the public generally or to
any third party except as required by applicable law or regulation or the rules
of any governing stock exchange or market quotation system. Notwithstanding the
foregoing, (A) any party hereto may disclose the fact that this Settlement has
been entered into among the parties hereto (but without disclosing its terms)
and represents a full settlement of all claims in the Arbitration, (B) any party
hereto may disclose this Settlement to any attorney, accountant, investors,
public relations advisor, insurance carrier or other consultant engaged by such
party in the ordinary course of business, in connection with tasks assigned to
such person or persons, so long as such attorney, investor, accountant, public
relations advisor, insurance carrier or other consultant is bound, subject to
the requirements of applicable law, to confidentiality, (C) any party may
disclose the existence and the terms of this Settlement if and to the extent
(but only to the extent) it is required to do so by an order of a court of
competent jurisdiction or by a subpoena or any other demand for discovery made
in an action or proceeding pending in a court or governmental agency of
competent jurisdiction, provided that, in the case of such a subpoena or other
demand for discovery, the party receiving such process shall notify each other
party to this Settlement of such receipt, together with delivery of a copy
thereof and, in such case, any such notified party shall have the right to
object, at its own cost, to compliance with any such subpoena or other demand
based on the confidentiality of this Settlement.
13. Further Cooperation.
The parties hereto agree to execute and deliver any and all additional
papers, documents and other assurances and shall do any and all acts or things
reasonably necessary in connection with the performance of their obligations
hereunder to implement the provisions of this Settlement.
14. Costs and Fees.
Each party shall bear its own attorneys' fees and costs incurred in
connection with the Arbitration and State Court Action, and with respect to the
negotiation, execution and delivery of this Settlement and each document
required to be delivered hereunder.
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15. Miscellaneous.
A. Notices.
All notices, consents, waivers, and other communications under this
Settlement and under each instrument or document executed and delivered
pursuant hereto must be in writing and will be deemed to have been duly
given when (i) delivered by hand (with written confirmation of receipt), or
(ii) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the
appropriate addresses and facsimile numbers set forth below (or to such
other addresses and facsimile numbers as a party may designate by written
notice to the other parties):
JDSU: JDS Uniphase Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to: Xxxx Xxxx Xxxx & Freidenrich, LLP
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
IPG: IPG Photonics Corporation
00 Xxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with copies to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxxxxxx
Facsimile No.: (000) 000-0000
B. Successors and Assigns; Rights of Third Parties.
Except as otherwise expressly provided herein, all covenants and agreements
contained in this Settlement by or on behalf of the parties hereto shall be
binding on and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns. Nothing
expressed or implied in this Settlement is intended or shall be construed
to confer upon or give any person other than the parties hereto any rights
or remedies under this Settlement, except only that each Releasee shall be
entitled to enforce the releases granted hereunder in its favor.
C. Severability.
Whenever possible, each provision of this Settlement and of each instrument
and document entered into pursuant hereto shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Settlement or of any such other instrument or document is
held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder hereof or thereof, and any such
prohibited or
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invalid provision shall be deemed to be amended to the extent necessary
such that, as so amended, it will be valid and enforceable to the fullest
extent possible under applicable law.
D. Governing Law.
All claims and matters arising under or in connection with, or relating to,
this Settlement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to its conflicts of
laws rules.
E. Modifications, Waivers and Amendments.
No amendment, change, waiver, modification, cancellation or termination of
this Settlement or any part thereof, shall be valid unless expressly set
forth in a written document signed by the party or parties against whom
enforcement of the amendment, change, waiver, modification, cancellation or
termination is sought. No waiver of any provision of this Settlement shall
be deemed, or shall constitute, a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver unless it
specifically so provides.
F. Nature of Settlement.
Neither this Settlement nor any instrument or document executed pursuant
hereto constitutes, nor shall it or any such other instrument or document
be construed as, an admission by any party hereto or thereto of any breach
of contract or other violation by any of them of any right of any such
other party, any harm to any such other party, or any violation by any such
party of any federal, state or local statute, law, ordinance, regulation or
common law duty.
G. No Fraudulent Inducement.
Each party hereto hereby irrevocably and unconditionally waives any and all
claims or defenses to the full performance and enforcement of this
Settlement and each instrument and document executed pursuant hereto or in
connection herewith based on any allegation of fraud in the inducement or
any other similar basis seeking to limit, prevent or obstruct the full
performance and enforcement of this Settlement and each such other
instrument and document.
H. Counterparts.
This Settlement may be executed in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same agreement,
and may be executed and delivered by facsimile followed promptly by the
original, with such execution and delivery by facsimile to be as binding
and effective as delivery of the original.
I. Entire Agreement.
This Settlement embodies the complete agreement among the parties and
supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
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J. Descriptive Headings; Interpretation.
The descriptive headings of this Settlement are inserted for convenience
only and do not constitute a Section of this Settlement. The use of the
word "including" in this Settlement and in any instrument and document
executed and delivered pursuant hereto shall be by way of example rather
than by limitation. The terms and provisions of this Settlement are the
result of the mutual efforts of the parties hereto and their respective
attorneys, and no party, nor any of the parties' respective attorneys,
shall be deemed the drafter of this Settlement or of any instrument or
document executed pursuant hereto for purposes of interpreting any
provision hereof in any judicial or other proceeding that may arise between
or among them.
K. Survival of Representations and Warranties.
The representations and warranties contained in this Settlement shall
survive the execution and delivery of this Settlement.
IN WITNESS WHEREOF, the parties hereto have executed this Confidential
Settlement Agreement on the date first written above.
JDS UNIPHASE CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Its: Vice President
IPG PHOTONICS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Its: CEO and Chairman
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